US Supreme Court and the Ocean

Recently, a NY Times article reported on decisions about environmental matters by the US Supreme Court in its latest session. The article, quoting Richard J. Lazarus of the Supreme Court Institute at the Georgetown University Law Center, pointed to the consistently negative decisions in cases brought by environmental organizations.

What was most interesting was the nature of the cases. The justices allowed the US Navy to test sonar proven to threaten migrating whales, to challenge US Forest Service regulations against dumping mining waste in Alaskan lakes, to limit liability of corporations responsible for toxic spills, and to allow the Environmental Protection Agency to use cost benefit analysis to decide how much marine life may be killed by cooling structures at power plants.

As you might imagine, these decisions were greatly acclaimed by their winners, related interests and corporations, and the US Chamber of Commerce.

Amazingly, every decision resulted in a threat against a healthy ocean. Research has proven the negative impact of certain frequency sonar on whale populations, and lower courts had decided, and were upheld on appeal, that the Navy’s argument based on national security was unjustified. Reversed. Over-ruled. Limiting corporate liability for the perpetrators of toxic spills, most frequently in coastal waters, removes responsibility for the event and delimits adequate resources for clean up, repair and mitigation. Mining waste in lakes may account for the ever-increasing presence of heavy metals in the draining streams and rivers, with continuing detrimental impact through the watershed all the way to the sea. And, finally, anyone who has ever played with an Excel spreadsheet knows how cost-benefit analysis can be adjusted to justify almost anything. Fish vs. power-plants: how do we do the math?

Just how much marine life can be sacrificed to permit a cooling structure for a power plant? How do we calculate the true value of the structure? For example, beyond construction cost do we also include the negative value of the CO2 emitted by that plant and its impact on climate and the world economy? Do we include the energy cost of the oil or coal that has been transported internationally or mined regionally with additional negative environmental expense? And what about the marine life? Is it valued simply as the market cost for useless biomass? Or is it valued for its reproductive potential lost along with the fecundity of the nearby spawning ground? Do we include its value as a source for food or fertilizer or pharmaceuticals? Do we calculate its place in an economic chain of related employment and downstream community viability? To reach the desired conclusion, just re-state the premises to your advantage. This EPA analysis could take forever, lead to a false conclusion, and, probably, provide more work for judges.

Are we prepared to accept that a true calculation might just demonstrate that the value of the marine life is greater than the value of the plant? Will the US Chamber of Commerce accept the outcome of a true cost-benefit analysis based on ecosystem calculations and social cost estimates that demonstrate the power plant is a negative contributor to the economy while the marine life is not?

The Supreme Court, tilted as it apparently is to a conservative, strict constructionist viewpoint, has by these decisions contributed cogently and deliberately to forces that will continue to poison the land and sea. Ironically, these decisions are evidence of just how blind justices can be, and, like the toxins enabled, they serve for life.